Mr X and the Department of Foreign Affairs

Request for access to records relating to the Church of Scientology - whether disclosure of the existence or non-existence of records could reasonably be expected to affect adversely the international relations of the state - section 24(3) - whether release could reasonably be expected to affect adversely the international relations of the state - section 24(1)(c)

Case Summary

Facts

The requester applied to the Department of Foreign Affairs for access to records relating to the Church of Scientology. The Department decided to refuse the request pursuant to the provisions of section 24(1)(c) and 24(3) of the FOI Act. The requester applied for a review of the Department's decision

Decision

While the Department held a number of records relating to the Church of Scientology, two of which were created after the commencement of the FOI Act, it decided to neither confirm nor deny the existence of records. During the course of the review the Department was asked if it wished to continue to rely on the provisions of section 24(3) having regard to the preliminary view of the Office that merely disclosing that the Department holds records which concern the Church of Scientology but without disclosing details of the contents of the records or the identity of the authors or the circumstances in which the records were created could not reasonably be expected to affect adversely the international relations of the state. As the Department wished to continue to rely on the exemption the Commissioner decided to deal with the review in two parts. The Commissioner was satisfied that that disclosure of the existence of records relating to the Church of Scientology would not give rise to the harms identified and he found that section 24(3) did not, therefore, apply. He decided to annul that part of the Department's decision.

When the time within which the Department could appeal to the High Court on a point of law arising from that decision had passed, the Commissioner issued his decision in respect of the applicability of section 24(1)(c) to the records held by the Department. He found that a right of access did not exist to those records which were created before the commencement of the FOI Act. In respect of the two remaining records the Department argued that the disclosure of the contents and of the nature and circumstances of the creation of the records could reasonably be expected to affect adversely the international relations of the state. The records contained details, as reported by an Irish Embassy, of a foreign Government's views on the Scientology movement and of actions taken by that Government concerning the movement. The Commissioner found that the majority of the information contained in the records was already in the public domain. He found that the Department had not shown that the release of the records could reasonably be expected to affect adversely the international relations of the state.

Date of Decision: 21.11.2001

Our Reference: 99580

Letter 1

21.11.2001

Dear Mr X

I refer to your application under the Freedom of Information Act ("the FOI Act") for a review of the decision of the Department of Foreign Affairs ("the Department") to refuse your request for access to records relating to the Church of Scientology. At the outset, I wish to apologise for the delay which has arisen in dealing with this application which was due to staff shortages and pressure of work.

Background

I have been authorised by the Commissioner to carry out the review on his behalf. As you are aware, the Department decided to refuse your request in accordance with sections 24(1)(c) and 24(3) of the FOI Act. Section 24(1) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to adversely affect

(a) the security of the state, (b) the defence of the state (c) the international relations of the state, or (d) matters relating to Northern Ireland

Section 24(3) provides that a public body shall not disclose to a requester whether or not a record exists where it is satisfied that the disclosure of the existence or non-existence of the record would prejudice a matter referred to in section 24(1). It follows from this that disclosure of the existence or non-existence of such a record only acknowledges the fact that the Department does or does not hold such a record.

Where such an acknowledgement indicates the existence of a record it would not disclose details of the contents of the record or the circumstances surrounding its creation. In this instance, I have not been presented with any evidence that satisfies me that disclosure of the fact that records relating to the Church of Scientology exist or do not exist could possibly result in the international relations of the state being adversely affected. Similarly, I have not been presented with any evidence that satisfies me that such disclosure could give rise to any of the other harms identified in section 24(1). I have decided, therefore, to annul the decision of the Department to refuse your request in accordance with section 24(3) of the FOI Act.

Having decided that section 24(3) does not apply, I shall now contact the Department to ascertain its position with regard to your request. I will be corresponding with the Department further on this matter and when I have completed my investigations into this aspect of your request I will contact you again. Please note that a party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. This means that it is open to the Department to appeal to the High Court on a point of law my decision that section 24(3) does not apply. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours Sincerely

Liam Kelly

Senior Investigator

Letter 2

06.02.2002

Dear Mr X

I refer to my letter of 21 November, 2001 concerning your application under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the Department of Foreign Affairs ("the Department") to refuse your request for access to records relating to the Church of Scientology.

As you are aware, I decided in that letter that the Department was not justified in deciding to refuse your request in accordance with section 24(3). As the time within which the Department could appeal to the High Court on a point of law arising from that decision has now passed, I am now in a position to advise you that the Department does, in fact, hold records relating to your request. I am also now in a position to conclude my review by issuing a binding decision in respect of the Department's decision to refuse access to those records.

Scope of Review

The Department has advised that it holds a number of records relating to the Church of Scientology which were created before the commencement of the FOI Act, i.e. 21 April, 1998, and that it holds two records which were created after that date. It has decided to refuse access to the pre-commencement records on the ground that the FOI Act does not apply to such records and to the two post-commencement records on the ground that the exemption contained in section 24(1)(c) of the Act applies. Accordingly, my review is concerned solely with the question of whether the Department is justified in deciding to refuse access to the pre-commencement records and the two post-commencement records in question.

Findings

Preliminary Matters

Before dealing with the exemptions claimed by the Department, I wish to make two points. The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that, in the present case, the extent of the reasons which I can give is severely limited.

The second point which I wish to make is that, where a public body refuses access to records under the FOI Act, then in any subsequent review by me that refusal is presumed not to have been justified unless the public body satisfies me to the contrary (section 34(12)(b) of the FOI Act).

Pre-Commencement Records

The FOI Act confers a right of access to records created after its commencement, i.e. 21 April 1998. Furthermore, section 6(5) confers a right of access to records created before 21 April 1998 where (a) such access is necessary or expedient to understand records created after that date, or where (b) the records relate to personal information about the requester. For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would ordinarily be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The Department has advised that the pre-commencement records it holds relating to the Church of Scientology do not relate to personal information about you and I am satisfied, from the description of the records given, that this is the case. It follows, therefore, that the only issue I must consider is whether access to these records is necessary or expedient in order to understand a record created after 21 April, 1998 in accordance with the provisions of section 6(5)(a) of the Act.

In Mr. ABE and the Department of the Marine and Natural Resources, Case Number 98117, 2 OIC Dec. 73 (1999), I explained my approach to interpreting the phrase "necessary or expedient in order to understand". I stated that the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood. I made it clear that the fact that a document does not contain all the information that a reader might wish to have does not mean that the substance of a document cannot be understood. I also defined the word "expedient" as "fit, proper or suitable to the circumstances of the case". I concluded that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record.

I have examined the two post commencement records held by the Department in the light of my interpretation of section 6(5)(a) as explained above and I am satisfied that they can be understood in their own right without requiring access to the pre-commencement records. Furthermore, as I am not aware of any other record created after 21 April 1998 in respect of which it could be said that access to the present records is necessary or expedient in order to understand them, I find that the provisions of section 6(5)(a) do not apply.

Post Commencement Records

The Department argues that the two post-commencement records are exempt in accordance with the provisions of section 24(1)(c) of the FOI Act. Section 24(1)(c) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to affect adversely the international relations of the State. For the public body to succeed in its arguments, I have to be satisfied that granting access to the records in respect of which the exemption is claimed could reasonably be expected to have the adverse effect so identified. I do not have to be satisfied that such an outcome will definitely occur. It is sufficient for the public body to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

In its correspondence with my Office, the Department put forward a number of arguments as to how it considers that releasing the two records at issue in this case could affect adversely the international relations of the State. The arguments concern not only how disclosure of the contents of the records might give rise to such harm but also how disclosure of the nature and circumstances of the creation of the records might do so. I should explain that, while section 43 requires me to take all reasonable precautions to prevent the disclosure of information contained in an exempt record, there are no similar constraints imposed upon me in relation to describing the nature of the record provided that, in doing so, no information contained in the record is disclosed. Nevertheless, in view of my findings as set out below, I have decided that a detailed description of the records is not necessary in this case, thus ensuring that the Department's grounds for appeal are not prejudiced in any way.

Having carefully considered the Department's arguments, I am satisfied that disclosure of the nature and circumstances of the creation of the records in this case could not possibly adversely affect the international relations of the State and that to expect that such an outcome would arise is unreasonable. I am also satisfied that the Department has not presented me with sufficient evidence that disclosure of the contents of the records in this case could give rise to such harm. I find, therefore, that section 24(1)(c) does not apply. In the circumstances, and having regard to the provisions of section 34(12) of the FOI Act, I find that the Department was not justified in deciding to refuse access to the two records in question

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby annul the decision of the Department in this case. I have decided, in accordance with section 34(2)(b)(ii), that you should be given access to the two post-commencement records in question.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.